Jeff posted last week (here) on the frequent but surmountable "divide" between practice and theory in law school, or more precisely between practitioners and theoreticians within the larger law school world. The mission of legal education has to serve several larger constituencies, and they all matter. His post really serves, if you think about it, as sort of an open letter to law deans and dean search committees. It's worth a read by academics who don't want to dirty "their" institution with law practice and practioners, and by practitioners and the real-life communities of a law school who may think egghead intellectuals miss the point of a "real" law school qua professional training facility.

That theme is given an applied context in this new post by Michael Froomkin of the University of Miami--applied because these questions and concerns are not merely academic to those who, right now, need a new dean to take a really good law school and its faculty to the next level. His view is entitled, Why A Practitioner Dean Sounds Like A Better Idea Than It Usually Is. Although I don't agree with everything he says, it too should be required reading for dean candidates, search committees, and supportive alum. It certainly explains well to those in the larger community what they are just not getting about the insides of a law school--the herding cat thing--when they so easily assume that good managers in the real world will translate to ivory towers like ours. Law schools "are hard to administer — much harder, I’d think than a court (at the end of the day, there’s always a bailiff…), and very different from a law firm."

The blog Western Justice {"from a small town DA") shares its nominee for the "we've heard it all" file, which "is the elected DA who was pulled over, and had less than one ounce of
marijuana. . ."

Now, this is probably not the first time it has happened to a
corrupt/stupid DA. Here in my state, that is not a felony, and it rarely carries
jail time if it is your first offense, so what was flabbergasting about the case
is that normally, people mitigate their offense and cop to a lesser
crime ("Oh, it's not that much marijuana"). This DA was not so smart. He told
the officer (obviously not verbatim), "Oh, um, the marijuana? Ha ha . . . . eh .
. . it's not mine!!! Yeah, that's it, it's not mine! It's for my wife. She's
sick, and I'm bringing it home to her."

The poor fellow just copped to a higher charge--distribution of marijuana,
a felony.

See, and I am thinking the second-level stupid thing is to ever, ever narc on your spouse.

The Michigan Attorney Discipline Board affirmed a hearing panel's order of a 180 day suspension and restitution in a matter arising out of the lawyer's representation of a client "in various actions including parental kidnapping charges, divorce, probation violations, and tort actions." The lawyer had failed to communicate the basis and rate of his fee, collected an excessive fee, failed to maintain complete records and committed other escrow violations. The board found the attorney's brief on appeal was not particularly helpful-- "many of the arguments are less than cogent and are waived or abandoned on review...And some of the arguments are general, repetitive and factually inaccurate." Further,

"It is evident from Respondent's briefs that he feels persecuted, betrayed by his client, and victimized in general...We do not wish to minimize the difficulties that respondent has suffered, but we must point out that they do not excuse or mitigate the misconduct here. [The client] did not come to respondent to help him restore his reputation. Her case was not about him. She came with specific legal problems that needed handling, and, as the panel pointed out, she may have needed counseling from an objective and appropriately detached, yet diligent, lawyer. We cannot stress enough that the duties neglected by respondent here were not simple niceties or mere business practices, but were critical to the representation. "

A Nevada district court judge filed a motion to reduce child support payments in his own divorce case after he was defeated in his reelection bid. After the hearing on the motion, the judge "entered an order sealing the entire case file and sua sponte issued a gag order preventing all parties and attorneys from disclosing any documents or discussing any portion of the case." The wife appealed to the Nevada Supreme Court, which held that the judge had abused her discretion in issuing the sealing and gag orders. (Mike Frisch)

An attorney presented two orders for a judge's signature. The judge had intended to sign both but overlooked one. When the lawyer realized the error, he forged the judge's signature and filed the order. When he was confronted, he admitted what he had done. The Iowa Grievance Commission privately admonished the attorney and an appeal was taken by the Board. The Iowa Supreme Court agreed that "forgery is a serious violation and warrants public discipline." The court imposed a public reprimand:

"We believe a public reprimand is necessary to signal Iowa lawyers and the citizens of Iowa that forging a judge's signature is a serious ethical violation under any circumstances."

The judge had noticed the forgery and asked for an explanation, which the attorney provided. The judge and lawyer then both reported the incident to disciplinary authorities. (Mike Frisch)

The web page of the California State Bar reports that the Bar has taken action to shut down a non-lawyer's immigration practice. The Bar obtained an injunction pursuant to a provision in state law that permits such action based on a showing of unauthorized practice and has taken over the non-lawyer's practice.

"Through the cooperative efforts of the State Bar and the Los Angeles County District Attorney’s Office, we have successfully closed down an operation that preys upon and defrauds our immigrant population,” said State Bar Chief Trial Counsel Scott Drexel. “We believe that this and other similar operations will provide a critical deterrent for those who seek to take advantage of immigrants and others who are in need of legal advice and assistance."

The New York Appellate Division for the Second Judicial Department rejected a request for dismissal of disciplinary charges and disbarred an attorney who had permitted a corporation to use his name and allowed non-attorneys access to the corporation's "settlement trust account." Although the attorney receive fees for real estate closings, he performed no legal services and did not supervise the activities of the corporation's employees. The court rejected the suggestion that the ethics rules governing trust accounts did not govern the charged misconduct:

"We reject the respondent's contention that the disciplinary rules with respect to attorney trust accounts do not apply to this situation, inasmuch as he had nothing to do with the Corporation in his capacity as an attorney, and that the Corporation was a "settlement company," as opposed to a law firm. 'A lawyer in possession of any funds or other property belonging to another person, where such possession is incident to his or her practice of law, is a fiduciary' (DR 9-102[a] [22 NYCRR 1200.46[a]]). By permitting the corporation's Trust Account to be established in his name, knowing that the Corporation was using that account to represent lending institutions at real estate closings, the respondent had possession of the funds incident to his practice of law within the meaning of DR 9-102(a) (22 NYCRR 1200.46[a]).

Just as an attorney cannot lend his or her name to an escrow account run by others, an attorney cannot avoid the disciplinary rules relating to trust accounts by allowing a business entity, with which he or she is affiliated to some degree, to hold the funds belonging to others in a non-escrow account."

As to sanction:

"By participating in a scheme to create an entity whose purpose was to represent out-of-state lending institutions at real estate closings in New York, for which a New York attorney was a necessary presence, and by failing to exercise any supervision over that entity or the funds entrusted to it, the respondent engaged in serious professional misconduct which made it possible for non-attorneys to commit massive fraud to the detriment of both lending institutions and purchasers. Such misconduct warrants the respondent's disbarment."

Does a law firm that has issued a trust account check and receives notice of a writ of garnishment on the trust account prior to the cashing of the check have a duty to inquire if the check has cleared and, if not, stop payment? Yes, according to a decision issued today by the Florida Supreme Court:

"This decision is consistent with the garnishment statute and prior case law interpreting the statute, as well as the Rules Regulating the Florida Bar."

The court concluded that the law firm retains possession and control over trust funds until the check is paid, rejecting the suggestion that an escrow check is indistinguishable from a certified check. The firm had settled a case, received the proceeds and sent the settlement check to the client. Prior to the receipt of the proceeds, the firm had received a garnishment notice and truthfully responded that it held no funds. The firm did not stop payment after it had received a second garnishment notice of a judgment creditor of the client. The law firm was held liable to the creditor for amounts disbursed over and above the legal fee (which the court held the law firm entitled to).

This is a potentially significant decision exploring the duties to third parties under Rule 1.15. The court clearly concludes that the firm's inaction violated the disciplinary rule, although the case is not disciplinary. The issue was one of first impression in Florida. (Mike Frisch)

In an appeal in a breach of contract action, the New York Appellate Division for the Second Judicial Department held that the trial court had improperly dismissed the complaint of a former law firm partner that the defendant partners had failed to pay him the value of his interest in the partnership:

"The Court of Appeals recently made clear that the 'liability shield' created by Partnership Law § 26(b) for general partners of a registered limited liability partnership only applies to 'a partner's liability to third parties, and, in fact, is part of article 3 of the Partnership Law ( Relations of Partners to Persons Dealing with the Partnership'), not article 4 ( Relations of Partners to One Another')' (Ederer v Gursky, 9 NY3d 514, 524). Thus, Partnership Law § 26(b) 'does not shield a general partner in a registered limited liability partnership from personal liability for breaches of the partnership's or partners' obligations to each other' (Ederer v Gursky, 9 NY3d at 516)."

So opines the Maryland Court of Appeals in characterizing the efforts of the circuit court in post-divorce "contentious and protracted litigation regarding...divorce and ancillary matters." A law firm had entered into an agreement with its client (the husband) to impose two liens on the client's interest in the marital home. The client was represented by independent counsel concerning the liens. The firm "established a priority right in the encumbered property with respect to third party creditors." The issue on appeal was whether the circuit court properly applied Maryland law "to prevent [the husband's] law firm from establishing priority in the proceeds from the sale of the marital home over the marital award granted to [the wife]."

The court concludes that "[i]rrespective of whether an injustice resulted from the imposition of liens against the proceeds of the marital home to satisfy [the husband's] legal fees or whether [the husband] retains other sources from which [the wife] may recover her monetary award, in the final analysis, because the trial court did not reduce the monetary award to a judgment, the [law] firm had priority to [his] interest in the proceeds. Bluntly put, the trial court, understandably so, felt that it had been stung because it had been for [the husband's] benefit that, with clear purpose and intent, it had not entered a money judgment [in favor of the law firm]. Consequently, given that the genesis of the controversy at the core of this appeal is the particular action of the trial judge, we take no position in this opinion on whether ethical boundaries were crossed. We leave the issue for another day and another fora." (Mike Frisch)

A two-year suspension was imposed by the Ohio Supreme Court in a matter involving an attorney who accepted clients from a company that uses direct mail to market estate planning services in Ohio and other states. In one instance, the attorney never met with the client but allowed a representative of the company to handle the matter and pay her a small fee for legal services. The ethics charges (which were admitted) involved requesting an organization to recommend or promote the lawyer's services, assisting the unauthorized practice of law, sharing fees with a non-lawyer and revealing confidences and secrets. "There was no evidence of a dishonest or selfish motive...and when [the attorney] became aware that her conduct was in violation of the Disciplinary Rules, she terminated her relationship with [the company}." (Mike Frisch)

Not a legal profession case, but worthy of note, is a decision today from the Wisconsin Supreme Court. The court holds that a person's forehead is an "other bodliy member" for purposes of the criminal mayhem statute. The court explores the common law antecedents of mayhem and applies principles of statutory construction to reach its result:

"The mayhem statute seeks to punish those who intentionally disable or disfigure another person's bodily member. Absurd results would certainly arise if the forehead were excluded.For example, disabling the nose is mayhem, but disabling the forehead, which protects one of the most important organs of the body, would not constitute mayhem.A statute must be interpreted in light of its manifest object; therefore, we conclude that the forehead qualifies as an 'other bodily member.' "

The Ohio Supreme Court permanently revoked the license of an attorney who had stolen legal fees due to his firm, forged documents to conceal the thefts, commingled client funds, neglected cases, and failed to cooperate in the bar investigation by failing to provide a handwriting sample. He blamed the thefts and lack of records on another firm employee, but "[t]he panel and the board did not find [his] testimony credible, and neither do we. "

Should more jurisdictions impose permanent disbarment in matters such as these or for conviction of serious criminal offenses? On one hand, there is some benefit to the idea that anyone can be rehabilitated and should be given the opportunity to demonstate their present good character and fitness to practice. On the other, reinstatement hearings in cases of awful misconduct tie up limited bar disciplinary resources with little or no prospect of achieving reinstatement. (Mike Frisch)

A recent blog post by Josh Wright on the future of law and economics has prompted responses from Larry Ribstein and Larry Solum. In a nutshell, Wright discusses the relationship between the basic skills underlying expertise in law versus expertise in economics, and, in particular, the increasing sophistication and inaccessibility of the the economic modeling and econometric work as L&E comes to be dominated by economists rather than lawyers. Ribstein makes a case for why there's still a place for "informal" L&E scholars (but who need to work, as Larry does, with professional economists in making technical economic claims), and Solum sees it as a springboard to a discussion about the future of the "law and ..." legal academy.

Larry Solum's view got me thinking. He poses three possible paths. One is a continuation of the present "law and . . . " interdisciplinarity. Two is what he called "multi-disciplinarity," essentially the transformation of academic law into a discipline studied by those who have the equivalent of a Ph.D. in law (and thus broad-based training in all the different ways law might be approached, akin to having a Ph.D. in philosophy or political science) and not merely the professional J.D. degree. Three is a return to the trade school model in which those aspiring to interdisciplinarity migrate to other departments or retire.

I propose the following thought experiment, just to help us refocus a little. Imagine the professors in engineering schools found it far more interesting to focus their own research on theoretical physics. The theoretical physicists could speak to each other in their language, but it would be largely incomprehensible to the engineering professors who didn't do theory, and completely incomprehensible to engineering students who just wanted to become engineers. My trafficking with L&E people who go heavy on the E is that the analogy to string theory or dark matter and their empirical non-falsification is pretty apt.

Following Larry Solum's train of thought, those engineering professors would start to migrate to joint then full appointments in the physics departments. But the engineering school's raison d'etre is to train engineers, not to do fundamental research in theoretical physics.

It wouldn't be an issue, really, if there were a sub-component of the engineering faculty who wanted to do highly specialized theory as long as the theorists could articulate some reason why the benefactors of the engineering school (largely its professional alumni) should continue to subsidize that activity. The problem arises when those funding the cash cow (which law schools are, but not because they produce lots of scholars!) look up and say: "what the hell am I supporting?"

Which makes Larry Solum's third alternative very, very plausible, and not inconsistent with the second. Legal scholarship is absorbed into a Ph.D. degreed academic multi-discipline that frees its adherents from the need to connect with the practice, and the training of lawyers who practice goes back to lawyers.

But does that kill the golden-egg laying goose?

The trick is allowing either alternative one or alternative two to proceed, but not to the point that teaching practicing lawyers returns to a trade school model.

But that's where the leadership comes in. Because the goose that gives the golden egg consists of those tuition and support dollars. So the job of academic leadership in model #2 is to articulate to the profession why the law needs pure scholars (to hearken to my roots, perhaps why even poor Jewish communities were willing to subsidize the rabbi qua scholar), and to articulate why, in return, the academy needs to be actively grateful to, and embrace, its practice-oriented benefactors.

Ironically, it seems to me that the thoughtful profession hungers for a dose of perspective, which it seems to me comes from philosophers (in the broadest sense of the word - recognizing that economics embraces a philosophical world view - no coincidence that Smith, Mill, Bentham, and Marx were cross-disciplinary!) We had a conversation here last week with Joe Tomain about what he does in his law and humanities seminars for judges and for the profession - using Great Books and great readings to help lawyers recharge their intellectual and emotional batteries. Why aren't we instilling that in law school, and continuing that relationship for the length of a career? Not every practitioner will want it, but many will!

The New York Advisory Committee on Judicial Ethics has issued an opinion concluding that a judicial association may bestow honorary membership to Pakistan Supreme Court justices who were forcibly removed from office. However:

"There is no ethical impropriety in judicial associations extending honorary memberships to two justices of the Pakistan Supreme Court who were forcibly removed from the court and currently are under house arrest. A public announcement about doing so, however, is an improper use of the prestige of judicial office that would involve judges in a matter of controversy, potentially with political overtones, and with implications for American foreign policy. The associations, therefore, should abstain from any such public announcement." (Mike Frisch)

The Massachusetts Supreme Judicial Court affirmed the dismissal of a civil action against a judge in the case of Liu v. Moynihan and Others. The rationale:

"In July, 2007, Qinsheng Liu commenced a civil action in the Superior Court that, as we best we can tell from the limited record before us, concerns things that occurred during his interactions with various government agencies and officials, and in a related, subsequent criminal proceeding against him. (He was acquitted of the criminal charges.) During the course of the civil case, a Superior Court judge issued various interlocutory rulings against him. The judge also ordered him to file an amended complaint and to cease filing motions and other documents until he had done so. In October, 2007, Qinsheng Liu filed a complaint in the county court claiming that the judge had 'committed violations of the Code of Judicial Conduct,' was not impartial, discriminated against him, and was 'unfaithful to the laws,' and seeking the judge's recusal. Qinsheng Liu's complaint was treated as a petition pursuant to G.L. c. 211, § 3, and denied.

Relief under G.L. c. 211, § 3, is properly denied 'where there are adequate and effective routes ... by which the petitioning party may seek relief.' The petitioner bears the burden to allege and demonstrate the absence or inadequacy of other remedies. The petitioner has not met this burden. He has offered no reason why any of the judge's allegedly improper actions (including a refusal to recuse herself) could not be adequately addressed in a direct appeal from any adverse judgment." (citations omitted)

Thanks to a pointer by reader Kelly Anders, who last week wrote on Law & Order, here is a link to the just-out "first special issue on Legal Fiction from THE LAW AND POLITICS BOOK REVIEW." From the intro:

Often during the fifteen years we have
been colleagues in the criminal justice department at Radford University, we
have talked about including works of fiction in our classes. Each of us has
favorites. Jack is partial to RUMPOLE OF THE BAILEY and SNOW FALLING ON
CEDARS. Mary often uses TO KILL A MOCKINGBIRD and A LESSON BEFORE DYING. We
agreed it would be interesting to find out how others who teach courses in
political science, criminal justice, or law use novels in their teaching.

Introduction, Vol. 18, No. 4 (Apr. 2008), pp.
288-290.

Other reviewed books include I Robot, Bonfire of the Vanities, Billy Budd, The Stranger, Cat's Cradle, A Time to Kill, Harry Potter and the Order of the Phoenix, and Brave New World (shown as sold by Amazon). Plenty of other listed novels are recommended by the journal, but not reviewed yet.

The Oklahoma Supreme Court imposed a one-year suspension of an attorney for misconduct involving commingling and, at a minimum, simple conversion (an offense not to be confused with misappropriation). The court rejected his claim of "complete ignorance of the proper management of a trust account" in light of his undergraduate degree in, of all things, accounting. The court did consider as mitigation the attorney's rather full plate of outside activities and distractions:

"The Bar...stipulated to an array of factors that contributed to Respondent's inattentiveness to his professional responsibilities. Respondent was 'over-extended with civic and community responsibilities' during the relevant time period that 'contributed to [his] inability to properly monitor his trust account.' Respondent was the Mayor of the City of Tecumseh; President of the Pottawatomie County Bar Association; Chairman of the Pottawatomie County Democratic Party; Chairman of the Pottawatomie County Law Library Board; and on the board or executive board for Big Brothers/Big Sisters of Pottawatomie and Seminole Counties, the Tecumseh Chamber of Commerce, and the Tecumseh Growth and Development Authority. The Bar and Respondent also stipulated that he was distracted by 'politically motivated' criminal charges that ultimately resulted in a verdict of not guilty. Respondent testified that no trust funds were spent on his criminal defense because his attorneys, including the attorney representing him here, did not charge him for their services."

I would also assume that no client money was misappropriated to finance the defense of criminal charges because it would be wrong to do so. (Mike Frisch)

The Oklahoma Supreme Court accepted the resignation of an attorney who is presently subject to federal charges of robbery by force and fear and use of a firearm in the commission of a robbery. The attorney stated that he had lost his bar membership card, but would turn it in if and when it is located.

Here is a link to a story that reports on the robbery (an alleged attempt to obtain painkillers from a pharmacy) and subsequent suicide attempt. (Mike Frisch)

The Washington Court of Appeals Division I affirmed a conviction for stalking, rejecting the defendant's contention that the trial court had erred in refusing to disqualify the prosecutor's office "because one of its attorneys assisted her victim in obtaining a civil anti-harassment order." Both defendant and victim were county employees and the prosecutors office had acted in its capacity as attorney for the county in assisting the employee-victim. The court rejected the contention that the prosecutors office had violated its duty of "impartiality" under Rule 3.8, finding no such duty under the rule:

"The term 'impartial' appears nowhere in the text of or comments toRPC 3.8. And the Washington Supreme Court has quoted a United States Supreme Court decision to explain that prosecutors are neither expected nor required to be completely impartial:

The Court observed that, unlike judges, "[p]rosecutors need not be entirely 'neutral and detached,'" and may be rewarded for initiating and carrying out prosecutions in the name of the people. As such, they "are necessarily permitted to be zealous in their enforcement of the law." Although the constitution prevents prosecutors from making decisions that are "motivated by improper factors or . . . contrary to law. . . . [T]he strict requirements of neutrality cannot be the same for . . . prosecutors as for judges . . . ."